Public Bill Committee

[Mr. Edward O’Hara in the Chair]

Edward O'Hara: Welcome back. I trust today will bring a speedy and satisfactory conclusion to our proceedings.

Clause 68

Amendment of definition of “terrorism” etc

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: Regrettably, I do not think very much of clause 68, and do not understand at all the need to amend the definition in the way proposed. I cannot conceive of a circumstance in which a “racial” cause is not already encompassed within “political, religious or ideological”, because anybody seeking to carry out terrorism on the back of a racial motive would already be caught. For us to add yet another unnecessary category to this growing list seems to me bad legislation, and we should try to avoid it.

Douglas Hogg: I agree with my hon. and learned Friend. In fact, I tabled an amendment—I can well understand that that is unnecessary, because we have a stand part debate—to delete the word “racial”. However, I agree with my hon. and learned Friend that we should be very cautious about extending the range of “terrorist offences”. We need to keep in mind that conviction for a terrorist offence attracts a whole range of penalties and consequences that go outside the normal range of criminal law. The Committee has already dealt with freezing orders and forfeiture orders, and we are conscious that terrorist-aggravated offences receive higher sentences. Therefore, we should not add to the classification of “terrorist offences” unless there is a very compelling reason.
Moreover, as the Committee will know, racially-aggravated offences already attract higher sentences under existing law. We are entitled to ask, as my hon. and learned Friend has asked, what the word “racial” adds to that which is already in the definition. My own belief is that its inclusion is simply for political correctness, and I suspect that there is absolutely no justification for it. I shall of course listen to the Minister explain his reasons, but my instinct is to vote against clause stand part.

Tom Brake: I support those points. The present definition would not include matters of a racial nature, and therefore we are very suspicious of this change and of the need for it.

Tony McNulty: Funnily enough, we start with consensus, in the sense that neither Lord Carlile nor I argue that the change broadens the offence. If it adds anything, it is clarity, because where “religious” is already utilised in our law, it has increasingly been the case that “racial” has been added as well. I agree broadly that anything that is racially motivated would be captured by the original wording. However, Lord Carlile says that the words are added only for clarity—not political correctness or any such nonsense—and to bring our definition in line with European and international ones, given that UN Security Council resolution 1566, which defines terrorism, includes the word “racial”, and the Council of Europe convention on the prevention of terrorism 2003/32 also uses that word. That is the only reason that the words are added.

Tom Brake: The Minister seems to have said that he would expect such offences to be covered by the present definition anyway, and that the change is about adding clarity. Does he not agree that, as a general principle, shorter legislation is better than longer legislation?

Tony McNulty: No, not necessarily. As a guiding principle, that is nonsense. What we seek is clarity: the clearest, most straightforward legislation possible. We do not legislate by counting the number of words, for God’s sake. We use the appropriate number of words and the appropriate phraseology for the Bill. Whenever we put matters relating to race or religion into law, not least in relation to aggravated offences as the right hon. and learned Member for Sleaford and North Hykeham suggests, they are invariably bracketed together. For that reason, there might be confusion. I am happy to have a further look at the clause, but I do think that it adds a degree of clarity in our European and international dimensions without adding to or broadening the definition. I commend it to the Committee.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 7.

Question accordingly agreed to.

Clause 68 ordered to stand part of the Bill.

None

Offences relating to information about members of armed forces

Dominic Grieve: I beg to move amendment No. 197, in clause 69, page 49, line 31, leave out from ‘Forces’ to ‘useful’ in line 32 and insert ‘with the intention that it is’.

Edward O'Hara: With this it will be convenient to discuss the following amendments:
No. 44, in clause 69, page 49, line 34, at end insert ‘and
(c) intends that the information should be useful to a person committing or preparing an act of terrorism.’.
No. 198, in clause 69, page 50, line 12, at end add—
‘(4) In section 58 of the Terrorism Act 2000 (c.11) (collection of information) in subsection (1) for “of a kind likely to be” substitute “with the intention that it is”’.
No. 235, in clause 69, page 49, line 36, after ‘prove’, insert ‘—
(a) ’.
No. 236, in clause 69, page 49, line 36, after ‘action’, insert—
‘(b) that at the time of the alleged offence he did not know and had no reason to know that the information or the disclosure of such information was of a kind that was likely to be helpful to a person committing or preparing an act of terrorism;
(c) that at the time of the alleged offence he believed that disclosure of such information was in the public interest.’.

Dominic Grieve: The next of these miscellaneous clauses deals with the creation of a new terrorist offence in relation to eliciting, publishing or communicating information about members of the armed forces. If I may say so at the outset, I am perfectly aware of the nature of the Birmingham plot, and that there has been clear evidence that individuals have been attempting to obtain such information for the purpose of doing harm to members of the armed forces.
My concern is about the wording of this new offence:
“A person commits an offence who—
(a) elicits or attempts to elicit information about a person who is or has been a member of Her Majesty’s Forces which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b) publishes or communicates information of that kind.”
A moment’s pause makes one realise that that is rather broadly drawn. On the face of it, because we are concentrating on information which is,
“of a kind likely to be useful”,
the truth is that almost any information is covered. A perfectly legitimate attempt by a law firm to write a biographical note giving details about a serving member of the armed forces might, quite innocently, reveal material which might be “likely to be useful”.
Indeed, I recollect, going back to the days of terrorist offences in Northern Ireland, a number of occasions when individuals were arrested in this country, with information on them that made the security services and the police think that a terrorist plot might be attempted. A map of the area where a Government Minister lived was found. There were details from telephone directories. There was information—all of which was publicly obtainable—that, when put together as a package, clearly indicated the possibility of a malevolent intent. Indeed, a prosecution was based on that.
On the face of it, the provision is now so widely drawn that anybody who attempted to elicit that sort of information might find themselves committing an offence. I cannot believe that that is an appropriate way in which to draft a criminal offence with a sanction of 10 years’ imprisonment. I appreciate that it could be argued that the wording in amendment No. 197 would cause another problem, as we would have to show the intention from all the surrounding circumstances—undoubtedly a more difficult hurdle for a prosecutor to get over than the current wording. However, just because something involves an extra hurdle, it does not justify our creating an offence as widely drawn as that set out in the Bill.
I know the usual answer given by Ministers in such circumstances, because I have heard it before: the Committee should not worry because no one will prosecute a 10 or 11-year-old boy who tries to elicit information about a hero figure who has come back from Afghanistan; the Director of Public Prosecutions and the Attorney-General, in their wisdom, would not prosecute such a person.
On the whole, the law must maintain an element of certainty so far as it is possible, and the clause creates an offence that is extraordinarily uncertain in its scope. Anyone, however innocently, eliciting information for a legitimate purpose about somebody who is, or has been, a member of the armed forces could be caught by it. It would be easy to show that that information might be useful to a person who was preparing an act of terrorism. If the Minister can come up with an alternative view of the drafting, I shall listen carefully. New Labour used to say that there was a third way, but at the moment I do not see it. The clause is much too widely drafted. It might also worry journalists who want to carry out legitimate journalism.

Tom Brake: Amendments Nos. 44 and 197 are similar. A few moments ago, the Minister spoke about the need for clarity. The amendments would clarify in what circumstances the law would be applied. My hon. Friend the Member for Somerton and Frome whispered in my ear that someone preparing material for Jane’s Fighting Ships might fall foul of the clause. Did the plane spotters in Greece have a reasonable excuse for what they were doing? Was the fact that they were plane spotters a sufficient safeguard? I hope that the Minister will go away and look again at the matter. Under the amendments, it would be necessary to show clear intent that the information procured will be useful to someone committing or preparing an act of terrorism. We need that sort of clarity in the Bill, and I hope that he will take that on board.

Elfyn Llwyd: Having read the clause, we see that a person would have a defence if it were proved that he had a reasonable excuse for his action. However, proposed new section 58A will criminalise the collection, making or possession of a record of information that is likely to be useful to a person committing or preparing an act of terrorism. It goes further, using “eliciting”, which means that a person will commit an offence if they try to obtain information and make no record of it. Liberty, for example, argues that that might already be covered under section 1 of the Criminal Attempts Act 1981, which criminalises acts that are more than merely preparatory to the commission of another offence. I would be grateful if the Minister could respond to that point in due course.
I would like to raise one other point. Going back to reasonable excuse, which is important, proposed new section 58A(2) says that if a person charged can prove a reasonable excuse then section 118 of the Terrorism Act 2000 applies. The use of that defence means that, if the defendant produces evidence sufficient to raise an issue, the duty is on the prosecution to prove beyond doubt that the issue exists. That appears to strengthen the defence by placing the burden on the prosecution. However, there is also a restriction to the defence of reasonable excuse—that it will not provide protection to those who act thoughtlessly or carelessly. Would a person who was duped into eliciting information by others—others with terrorist intent—be unlikely to have reasonable excuse? My fear is that that person could thereby be convicted, even if that person carelessly or thoughtlessly had no idea that information was being used with that malicious intent. Will the Minister respond to that point in due course?

Douglas Hogg: I, too, want to express my concern about the clause, and to speak briefly to my amendments Nos. 235 and 236.
There is already an offence under section 58 of the Terrorism Act 2000, which is drawn in pretty broad terms. It states:
“A person commits an offence if...he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or...he possesses a document or record containing information of that kind.”
Clause 69 is not an alternative; it adds to that. My first question is whether clause 69 adds anything to the law as presently stated in section 58 of the Terrorism Act.

Tony McNulty: Section 103 of the Terrorism Act 2000 explicitly refers to members of the armed forces, among others. That has since been repealed, because it was directed only at Northern Ireland. The clause simply puts the armed forces focus of section 103 into the broader section 58. That is the only reason for it.

Douglas Hogg: When the right hon. Gentleman comes to reply more fully, I would be grateful if he will expand on that. Section 58 seems to cover the substance of what we would be seeking to cover under clause 69. The extent to which clause 69 adds to the substance covered by section 58 is still not clear. That is the first point on which I would be grateful for greater clarification from the Minister.
The second point develops that made by my hon. and learned Friend the Member for Beaconsfield. It is an anxiety that I had about section 58 itself. Section 58 seems to me to be drawn in sufficiently wide terms to cover journalists and whistleblowers. If they identify any defects in our security system—for example, at an airport—they would be liable to prosecution, subject to the statutory defence, under section 58. I agree that clause 69 is more narrowly drawn, but there is a genuine anxiety that whistleblowers and journalists might find themselves facing prosecution if they have identified faults relating to members of the armed forces and then sought to publish them. The point about Jane’s Fighting Ships is rather interesting, provided that it was specific to individuals, but I can well understand that, for example, one might identify errors in the procurement department that resulted in armed servicemen serving in Afghanistan and Iraq not being provided with adequate equipment, or defects in the warning systems. If that information were to be published and personalised, I would have thought that that would run the risk—a serious risk—of courting a prosecution under clause 69.
That takes me to my next point. I do not like reverse burdens of proof, and that is covered in part by amendment No. 236. Clause 69(2) states:
“It is a defence for a person charged with an offence under this section to prove that they had reasonable excuse for their action.” 
Will that impose upon a possible defendant the persuasive and legal burden, or will it be merely an evidential burden? The Minister will keep in mind that the courts have applied a variety of approaches to this. Sometimes a clause of this kind does no more than impose an evidential burden so that the defendant has to produce some evidence of reasonable excuse, and it is then for the Crown to negate the reasonable excuse. That is the evidential case.
However, there is also a class of cases—section 91 of the Medicines Act 1968 is an example—in which the reverse burden of proof, which is actually couched in almost identical terms to this, constitutes a legal or persuasive burden. In other words, the defendant has to prove on the balance of probabilities that he or she comes within the defence afforded by the section. I do not know whether what is contemplated by clause 69 is what the courts call the evidential burden, or what they call a legal and persuasive burden. It is important that the Minister give us his opinion on that matter, if only for the guidance of the courts hereafter.
My next point is whether the persuasive burden is on the prospective defendant. I want to enlarge the category of the defences to include those set out in amendment No. 236—in effect, that the defendant had no actual or constructive knowledge that the information and/or disclosure of the same was likely to be of assistance to a terrorist, or alternatively, that at the time of the alleged offence he thought that the disclosure was in the public interest.
The public interest defence that I have incorporated in the amendment is basically intended to assist whistleblowers and journalists. It is right that in certain cases, subject to the views of the jury, a defendant should be allowed to assert, “I thought that there was a public interest in disclosing this information,” and claim that he thought he was identifying serious shortcomings in the armed services, of which the public needed to be aware. That is the explicit purpose of amendment No. 236. Incidentally, I also agree with amendment No. 197, tabled by my hon. and learned Friend, which would make it absolutely plain that the Crown has to prove intent. He is absolutely right to say that that amendment would make it more difficult for the Crown. Too bad, I say. We are not in the business of making it easier for prosecution authorities.
You will remember, Mr. O’Hara, that I did not have the pleasure of attending the Committee’s first sitting when it addressed the Bill. That was because I was involved in a case relating to the Medicines Act 1968, in which it was clear that the Crown had misused its powers and there had been a gross abuse of Executive authority. I fear that precisely that sort of situation could arise in this case.

Crispin Blunt: As I understand it, the way that my right hon. and learned Friend has drafted his amendment would require the potential defendant to establish all three points. I cannot imagine that that is what he is trying to do.

Douglas Hogg: My hon. Friend is right, but if I have done so, it is the result of poor drafting on my part—I am not a very good draftsman—as that was certainly not my intention. These are separate, free-standing defences. There is the general, reasonable excuse defence, and then I have tried to spell out alternative, specific free-standing defences. If I have erred, I apologise, but it was not my intention.

Tony McNulty: Rather as when we last met, although I cannot remember which particular clause we were debating, we are collectively guilty of looking at the amendments to this clause, not simply in isolation from the rest of the Bill and from the Terrorism Act 2000 in its full context, but completely in isolation from due process and the rule of law in this country.
The hon. Member for Meirionnydd Nant Conwy came closest to what we should be doing by relating the clause to section 118 and all other matters. The discussion about whistleblowers and journalists is abject nonsense in any terms, unless the researcher for Jane’s then tootles off to a terrorist and gives him the elicited information. That is simply what the clause is about.

Dominic Grieve: It is not.

Tony McNulty: It is.

Dominic Grieve: As worded, I do not think it is. Anybody who
“elicits or attempts to elicit information about a person who is or has been a member of Her Majesty’s Forces which is of a kind likely to be useful to a person committing or preparing an act of terrorism.”
The next paragraph follows “or”. On the face of it, there is no need to show that somebody has tootled off to talk to a proto-terrorist at all. The problem is that the offence is made out the moment that that information has been elicited or attempts have been made to elicit it.

Tony McNulty: In the context of terrorism; it will be part of clause 58 of the Terrorism Act, “Collection of information”. Case law is very clear on the matter too. Incidentally, the other small point, which I do not think was the import of any of the amendments, is that this particular offence, which people recognise the propriety of in terms of what we are trying to do for our armed forces, will be on a different footing from the broader issue of collecting information more generally in the Terrorism Act 2000. We will be saying that there is a higher bar, a higher test in terms of eliciting information about our armed forces than there is—as the hon. Member for Meirionnydd Nant Conwy pointed out—in section 58 of the 2000 Act more generally in the collection of information useful for terrorists. I am pretty sure that is not the intent behind the amendment, but that will be its consequence.

David Heath: I must bring the Minister back to the point that somehow one has to offer or be engaged in some sort of discourse with a terrorist for this offence to bite, and that that is shown by its context after section 58 of the Terrorism Act 2000. Is the right hon. Gentleman saying that this new clause is qualified by other clauses within the Terrorism Act? If it is not, and if it is read as it stands, that is clearly not the case. That is why the amendments, tabled by the hon. and learned Member for Beaconsfield and my hon. Friend the Member for Carshalton and Wallington, are so important.

Tony McNulty: Go away and read the Bill. Section 117 says very clearly that it is for the DPP to sanction a prosecution in the context of the Terrorism Act 2000 and all of its import and contexts. Then we come to the context of section 118 that the hon. Gentleman referred to, which deals with the reverse burden of proof point and, as the hon. Gentleman implies, the evidential burden is on the prosecution. If the defence says, “I was doing it simply for this reason,” as in our law generally, it is for the prosecution to prove beyond reasonable doubt that that defence is not a reasonable excuse and therefore should be put aside. This is why I told the Committee to read this amendment in the context of both the parent Act and the law more generally.

Elfyn Llwyd: May I give an example with reference to the earlier mention of the likelihood of a person being convicted when he was duped? Two or three years ago, a constituent of mine, an award-winning novelist in Wales asked me how many police officers and security people there are in the House of Commons. He was writing a novel about the House. Frankly, I ducked the issue. I know that he is not a terrorist, but let us say that, unbeknown to me, he had malicious intent and I had passed information on to him. Would I be caught by the measure?

Tony McNulty: No, not as I understand it, because there must be a reasonable suspicion that the information was intended to be used to assist terrorism.

David Heath: Where is that in the Bill?

Tony McNulty: With the greatest respect, we do not start from year zero. The law has been on the statute book since 2000, and section 58 has amassed a good deal of case law. Section 103 has been utilised rather sparingly in the context of Northern Ireland. In our business we do not present a clause and then have a paper trail the size of a telephone book just to find the propriety and the roots and the other bits that go around it. That is not how we do business. That is a simplistic approach to Committee, which ill becomes the hon. Gentleman. Our business is to look at a new clause and the amendments in the context of the wider body of law from which it comes.
To pursue the point made by the hon. Member for Meirionnydd Nant Conwy, as soon as he offers up “I had no idea what he was” as a defence, the burden of proof falls on the prosecution to challenge the excuse that is being offered with good reason. It is not a reverse burden of proof either, as the hon. Gentleman himself highlighted in relation to section 118 of the 2000 Act. Section 117 goes to the provenance of which prosecutions should be brought under that case, and it does not have the broad sweep that hon. Members suggest. In R v. K it was shown that there must be reasonable suspicion that the information was intended to be used to assist terrorism. Funnily enough, that is why that provision is in a terrorism Act. That would apply equally to new section 58A—the information must be likely to provide practical assistance to a person committing or preparing terrorism. Case law has been built up since the Act became law.
Regarding one of the other points made by the right hon. and learned Member for Sleaford and North Hykeham, “communicate” is not covered by section 58 nor is “attempt to elicit”, because the provenance of the amendment is specific to section 103 of the 2000 Act, which was subsequently repealed because of the dismantling of the security apparatus and legislation in Northern Ireland. New section 58A will cover a person trying to get information from MOD staff, not to write another little novel or to elicit where nuclear sites are—as Duncan Campbell did in the ’80s. Eliciting information useful to terrorists from MOD staff is not governed by section 58. MOD staff giving a terrorist information about the armed forces is covered by new section 58A. On the broader point, there is only an evidential burden. Crucially, if the defence raises an issue about the individual’s purpose, the prosecution must disprove that beyond reasonable doubt. It says here, in my little note, which is very kindly headed “Welsh guy”, with all due apology to—

Elfyn Llwyd: Probably me.

Tony McNulty: I think it means you. It says, “If duped, that is a reasonable excuse”. Depending as always on the circumstances of the case, that can be proffered as a reasonable excuse. There is only an evidential burden on the defence to prove the defence. It is for the prosecution to prove that he did not have that appropriate defence. In that context, all the amendments would undermine what we seek to do with new section 58A in reinforcing section 58. I do not doubt that there might be a substantive argument about section 58 and how that is drawn, but that is not for our deliberations now. Nor do I doubt that there is an argument that section 103, which related to the armed forces in Northern Ireland only, should either not have been repealed or should have been broadened to the UK or left aside totally. In that context, amendments Nos. 197 and 44 would undermine the effectiveness, or efficacitÃ(c), of the offence provided for in clause 69. The insertion of paragraph (b) by amendment No. 236 would add nothing to the statutory defence already included in the clause in terms of legal effect or clarity and is therefore unnecessary.
A person who can show that he did not know and had no reason to know that information or the disclosure of such information was likely to be helpful to a person committing or preparing an act of terrorism would be able to prove that he had a reasonable excuse for his actions. We should remember that, as the hon. Member for Meirionnydd Nant Conwy very kindly pointed out, section 118 of the 2000 Act places the burden on the prosecution to disprove the defence beyond reasonable doubt once an issue has been raised by the defence.
The proposed insertion of paragraph (c) under amendment No. 236 is unacceptable. It would allow the person in question to assert that he believed that the information that he communicated or published was in the public interest, regardless of what it was, regardless of the damaging effects of publishing such information and regardless of how reasonable it was for him to hold that belief. The courts are best placed to assess whether the disclosure was in the overriding public interest and whether an excuse is reasonable in the circumstances of the case.
Amendment No. 198 would undermine section 58 of the 2000 Act for the same reasons. That section has been in force since 2001. Section 5 of the 2000 Act already caters for preparatory acts that are carried out with the intention of assisting another to commit terrorist acts. Section 58 of the 2000 Act and clause 69 provide for wider offences aimed at combating the activities of those whose conduct is likely to assist terrorists. They do not require the prosecution to prove an intention to assist those involved in preparing or committing an act of terrorism. I am advised that the information itself must raise a reasonable suspicion that it was intended to be used to assist in the preparation or commission of an act of terrorism and to be of a kind that is likely to provide practical assistance to terrorist organisations. As we have discussed, section 58 of the 2000 Act and the clause include statutory defences to protect those who have a reasonable excuse for their actions.
As the hon. and learned Member for Beaconsfield said at the outset, there is good reason for clause 69, and we could go through recent cases where, sadly, members of the armed forces have been targeted. Other hon. Members will know that recent history is littered with such actions. On the basis of the operation of section 103 of the 2000 Act in Northern Ireland, it is perfectly reasonable that this provision is established as a UK-wide power because of the nature of the threat that we face. As we have already firmly established in this Committee, Northern Ireland is part of the UK and it would apply to Northern Ireland as well. Recent activities have shown that the power is still required in that context.
I resist the amendments and urge the Committee to support the clause.

Dominic Grieve: The Minister has been remarkably emollient during the Bill’s passage, which is uncharacteristic, but it was noticeable this morning that he has rather ceased to be so. I do not know whether that is because he has not had his breakfast. When the emollience goes, one is always left wondering whether it is because he feels justifiably outraged at the slurs against the Government in relation to the drafting of the clause, or whether it is because attack is the only form of defence open to him.
However, the Minister has made some important points, the most important of which was the clarification of the requirement of the prosecution to disprove the defence once raised beyond reasonable doubt. I will go away and reflect on whether there is any better way of approaching the wording for this offence. As I said in my opening remarks, I entirely accept that such an offence is almost certainly required. It may well be, as my right hon. and learned Friend the Member for Sleaford and North Hykeham mentioned to me, that any necessary corrections should be made not to the Bill, but to the original section of the Terrorism Act 2000. For those reasons, I beg to ask leave to withdraw the amendment.

Douglas Hogg: I agree with what my hon. and learned Friend has just said. The Minister is quite right when he draws attention to section 118 of the 2000 Act, which makes it plain that the burden is evidential and not persuasive or legal, and that is very helpful. I accept that his criticism of paragraph (c) of my amendment No. 236 is well founded; belief by itself should not constitute a reasonable excuse. On the other hand, publication in the public interest should constitute a reasonable excuse. I am referring here to whistleblowers. The proper way forward, which was outlined by my hon. and learned Friend, is to consider amending section 58 of the 2000 Act. As the Bill amends that Act in many respects, it would be within the scope of a long title to make such an amendment. The best way for people such as myself to proceed is to consider whether we wish to amend section 58 of the 2000 Act on Report. At present, I am minded to seek to do so.

Amendment, by leave, withdrawn.

Tony McNulty: I beg to move amendment No. 164, in page 50, line 6, at end insert—
‘( ) Schedule 8A to this Act contains supplementary provisions relating to the offence under this section.’.

Edward O'Hara: With this it will be convenient to discuss the following: Government amendment No. 165.
Government new schedule 3—Offences relating to information about members of armed forces: supplementary provisions.

Tony McNulty: I apologise if I have lost my emollience. It is absolutely to do with not having had breakfast, not enough cigarettes and the fact that I had a bloody awful journey getting here. I did not think that I would get here by 9 o’clock at all because of the traffic. If there is a remote bit of rain in this country, the whole world stands still. However, I should not take that out on the Committee, so I apologise to everyone, including the Welsh guy. [Interruption.] It is not about—

David Heath: Boris.

Edward O'Hara: Order. Please allow the Minister to be emollient.

Tony McNulty: With respect, even I would not be so churlish as to blame the hon. Member for Henley (Mr. Johnson) who has been in post for about 11 days—not yet, anyway.

Dominic Grieve: Give him another couple of days.

Tony McNulty: Another couple of weeks. I agree that although the Committee has dealt with a range of contentious matters, it has done so in very good spirits. I apologise most sincerely and I hope to have my breakfast soon.
Proposed new schedule 8A ensures that the proposed provisions in clause 69, which would insert the additional offence that we have been talking about, are consistent—this is not offered as a red rag to a bull to any Member—with the UK’s commitment under the e-commerce directive 2000/31/EC with regard to services provided by the internet industry. It is a legal requirement and not a change of policy. The schedule ensures that the providers’ information society services that are established in the UK are covered by the offence, even when they are operating in other European economic areas.
Paragraphs 4 to 6 of the new schedule provide limitations of liability for internet intermediaries, and amendments Nos. 164 and 165 and new schedule 3 simply reflect that as a matter of legal provision given our agreement with the directive. It is no more suspicious than that and I commend it to the Committee.

Amendment agreed to.

Amendment made: No. 165, in page 50, line 12, at end insert—
‘( ) After Schedule 8 to the Terrorism Act 2000 insert the Schedule set out in Schedule (Offences relating to information about members of armed forces: supplementary provisions) to this Act.’.—[Mr. McNulty.]

Clause 69, as amended, ordered to stand part of the Bill.

Clause 70

Terrorist property: disclosure of information about possible offences

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I would be immensely grateful if the Minister would explain why the amendment in clause 70 is being sought. It looks completely innocuous—indeed in many ways it probably is—but equally I find it difficult to see how it makes any difference at all.

Tony McNulty: Clause 70 is innocuous. It clarifies part 3 of the Terrorism Act 2000, which deals with terrorist property. Section 19 of the 2000 Act makes it an offence for an individual to fail to inform the police if they believe or suspect during the course of their work that a person has committed a terrorist finance offence—the offences in sections 15 to 18 of the Terrorism Act 2000. Our proposal makes it clear that the offence in section 19 applies to all people in any form of employment in its widest sense, including unpaid employment. The duty to inform the police will therefore apply to contractors, office holders such as trustees of a charity, individuals on a full work experience programme or training and people carrying out voluntary work. In so far as this amendment extends the definition of employment, clause 70(4) ensures that it will have no retrospective effect. There may be a concern about the inclusion of those undertaking voluntary work. However, the Committee will want to note that the Charity Commission considers that its members are already subject to section 19, and the measure simply puts that beyond doubt.
Other provisions in part 3 of the 2000 Act refer to the terms “employment” and “employer” and the new definition applies to all those. For example, section 20 allows for disclosure of a suspicion of a terrorist finance offence to be made to a constable or to an employer regardless of any restriction of the disclosure of information, such as the duty of confidentiality. “Employer” will now have the wider meaning given by new section 22A. The provision is fairly innocuous, and I commend it to the Committee.

Douglas Hogg: My recent reading of the Terrorism Act 2000 made it plain that the measure is subject to an overriding provision that the offences were not committed by lawyers where the information was received in their confidential communication with their clients. It would be helpful if the Minister were to restate that, because he failed to mention that in his general statement of policy.

Tony McNulty: I think that that is certainly the case, and I am happy to confirm it. I detected the same import in my reading of the provision.

David Heath: I have a small point that I hope the Minister can help me with. Will this now apply to ministers of religion, whether employed or not employed?

Tony McNulty: That is an interesting point. I think that it does in the sense that they remain employees. The amendment provides full clarity on that point.

Question put and agreed to.

Clause 70 ordered to stand part of the Bill.

Clause 71 ordered to stand part of the Bill.

Clause 72

Control orders: meaning of involvement in terrorism-related activity

Dominic Grieve: I beg to move amendment No. 229, in clause 72, page 52, line 22, leave out subsection (2).

Edward O'Hara: With this it will be convenient to discuss amendment No. 230, in clause 74, page 53, line 15, leave out subsection (4).

Dominic Grieve: In clauses 72 and 74, there are amendments to the Prevention of Terrorism Act 2005. It is not always easy to understand the reasoning behind the amendments themselves, but I am prepared to accept that the amendments may be necessary.
In the case of clause 72 on the meaning of involvement in terrorism-related activity, the words
“to be involved in terrorism-related activity”
are substituted by
“the individual concerned to be involved in conduct falling within paragraphs (a) to (c)”.
So, instead of relying of the definition of the words “terrorism-related activity”, in future it will rely upon the individual definitions contained in that part of the 2005 Act. I do not have a big issue with that, but then one sees the startling statement in subsection (2) that
“This amendment shall be deemed always to have had effect.”
This is a retrospective amendment to be carried back, presumably to the time when the Prevention of Terrorism Act 2005 was first enacted, which means that a person could not subsequently argue that because it was being suggested that the offence that they might have committed came in prior to this Act, they were not involved in a terrorism-related activity, even though it might have fallen within paragraphs (a) to (c).
The Minister will not be surprised to learn that I do not like that amendment. It is our task as parliamentarians to draft statute, and people are entitled to rely upon statute for their protection. When Sir Thomas More was confronted with the Act of Supremacy and with having to take the oath at Lambeth palace, he asked for a copy of the statute from which the oath had been drafted and pointed out to his interlocutors that he considered that the oath did not follow the terms of the statute. Much good did it do him, mind you, but it is an early example of the proper reliance that people in this country have been entitled to place upon the words that Parliament enacts.
We live in a society where you are entitled to do what you like unless Parliament prohibits it. This form of retrospective removal of a possible right that could be invoked by a defendant does not commend itself to me, and I need a lot of persuasion from the Minister as to why it should be included. It applies equally to the question of the application for anonymity for a controlled person where, again in clause 74, it says these amendments shall be deemed always to have had effect.
Will the Minister explain the scope of both the amendments of the Terrorism Act and also explain why, quite exceptionally it seems, that it is necessary that these amendments should be deemed always to have had effect?

Douglas Hogg: I rise to support what my hon. and learned Friend has said. It is very important that this House, and thus this Committee, should not pass retrospective legislation. As I understand the intention of clause 72, it is either to define more clearly or to enlarge the class of activity that might trigger an application for control orders. Control orders are essentially penal in their consequences, although they are not treated as such by the Government.
I agree with my hon. and learned Friend that people should not be subjected to restrictions on their liberty as a result of retrospective legislation. If there is no powerful justification for what is being done, I hope that we will divide the Committee on this subject.

Elfyn Llwyd: I have studied the notes on clauses, which do not refer to the provision. If it is that important, perhaps the Minister will explain why we need to make the provision retrospective.

Tony McNulty: I understand perfectly the concerns, but I hope that I can allay them, because the measure is not meant to enlarge anything—it is meant to do the reverse. I understand the objections to retrospectivity as well. I am grateful to the hon. and learned Member for Beaconsfield for invoking one of my heroes, although I am not going to go down the road of the life and times of Thomas More.
The amendments seek to delete a similar provision contained in the two different clauses 72 and 74. It may help if I talk about the background. The purpose of clause 72 is to remove two potential ambiguities in the definition of terrorism-related activity in the Prevention of Terrorism Act. Section 1(9)(d) of the Act currently includes the phrase
“conduct which gives support or assistance to individuals who are known or believed to be involved in terrorism-related activity.”
That could be read as including individuals who unknowingly provide support or assistance to those involved in terrorism-related activity. In other words, the definition could currently include an individual A supporting an individual B whom the Secretary of State knows or believes is a terrorist, even though A does not know or believe that B is a terrorist. That is the thrust of the definition as currently drawn, which was never the intention.
I assure the Committee that the current provision has never been interpreted in that way, but none the less the ambiguity is there. The clause therefore amends the Prevention of Terrorism Act 2005 to ensure that the definition includes only those who provide support or assistance to individuals who are known or believed by the individual concerned to be involved in terrorism-related activity. Rather than enlarge, it narrows the focus of the import of the original definition.

Dominic Grieve: I am delighted to learn that, but in the circumstances, and granted that the Minister has said that the power has not caused any problems in the past, why are we putting in a retrospective clause for its operation? I suggest that the measure is not necessary, and on the whole I would prefer not to see it.

Tony McNulty: On balance, my advice is that it probably is necessary. I take the hon. and learned Gentleman’s points, as I said earlier, about the construct of the thing. The current definition also includes a potential circularity. Under the current definition, individual X could have a control order imposed on him because he was supporting individual Y, who in turn was known or believed to be supporting an individual Z who was involved in terrorism-related activity. There could be any number of links in this chain, all of whom could, in theory, have a control order imposed on them. The definition of those captured by the Prevention of Terrorism Act 2005 is not intended to be that wide and has never been used in that way, but the ambiguity is still there. Clauses 72 and 74 simply remove that circularity, ensuring that only those who provide support or assistance to someone directly involved in terrorism-related activity are included in the definition of terrorism-related activity. In the example given, only Y would be caught by the revised definition, not X.
Those paragraphs may be otiose and over-cautious, but my advice, which has persuaded me, is that on balance they are necessary. If we accept that—I know that it is terribly offensive—given that narrowing of the definition, notwithstanding the fact that it has never been interpreted in that way, it would be foolish and illogical not to return retrospectively to 2005 in terms of narrowing the definition. I know that that sounds terribly complicated, but I am assured that it is necessary and worthwhile.

Elfyn Llwyd: Obviously, we have to be careful with retrospection, but I have found one sentence in the explanatory notes that sums up the situation:
“This amendment will be deemed always to have had effect, to reflect the original policy intention and current practice.”
That is not very persuasive—those are fairly empty words, to be honest. I am sure that if the Minister were on the Opposition Benches, he would feel equally concerned about retrospection in this context. He says that on the balance of probability it is necessary, but it is a rather huge step, is it not?

Tony McNulty: I do not want the Committee to think that I have anything but the same aversion to retrospection in the law as the Committee does. I am not diminishing the importance of not being retrospective in legal practice. If, however, clauses 72 and 74 were not included simply because over the past two or three years they have not been interpreted in the way in which I have described, the provision might be interpreted with a definition that is too broad and that encompasses people in the net in a way in which the principal policy did not seek to do in the first place. Over-cautious or otherwise, it would be illogical not to amend the legislation and introduce retrospection.
If we were to try to achieve the same thing by another route—through the code of practice or whatever else—we could say, “From now on, this is what the Government clearly meant; we are very grateful that people have not interpreted the definition in the potentially wider context that they perfectly fairly could have done and from now on we’ll make sure that they won’t” If we were to do that, however, there would still be a chance—it would be remote—that the activities of someone who is up for a control order between 2000 and 2008 would come under the current broader definition of the Prevention of Terrorism Act 2005 as the grounds for the control order. Under clauses 72 and 74, however, the same person with the same network and the same behaviour would quite rightly be outside the net in terms of control orders, which was the original intention. On balance, I do not think that the change is over cautious. I appreciate that its presentation is terribly clumsy, as is the language, but on balance it is the right and necessary thing to do.

Douglas Hogg: There are two issues here. First, there is the principle. I am very much against retrospective legislation. I do not like seeing it in statute because it can be invoked later as a precedent. The basic principle against retrospectivity is a very important one to which we need to cling. The Minister has made a perfectly decent argument, but it has one fatal flaw. Applications for control orders—this is the triggering mechanism that we are debating—are within the exclusive control of the Executive. If the Executive, through the right hon. Gentleman, says that the interpretation he has given is correct and that they will not be seeking a control order in the future in the widest sense, we have safeguarded the situation. That is partly because an application will not be made. If it was made it would be contrary to the statement of Government policy and I should have thought that the courts would decline to support the making of the control order.
When one weighs up the undesirability of the precedent and the degree of risk that has been met by the Minister’s statement, I should have thought that the argument rested against putting this in the Bill. I suggest that the right hon. Gentleman reflect on the matter and that we do not press it to a Division at this stage. Subsequently, he might care to remove the clause but make a firm statement of Government policy, which would be binding on the Government in future matters.

Tony McNulty: I am grateful that the right hon. and learned Gentleman suggests that he will not press the amendment. I will happily take this away to reflect on it. I already have done, by the by. If this can be achieved by a firm statement of Government policy, I am happy to look at that and report back to the Committee and the House on Report, but I shall retain the option to confirm clauses 72 and 74.

Dominic Grieve: I listened to what my right hon. and learned Friend the Member for Sleaford and North Hykeham said and there may be good grounds for withdrawing the amendments at this stage. However, the matter leaves me profoundly uneasy. I do not like the principle. The logic of the Government’s position is not entirely clear to me. I appreciate that the desire is not to widen the scope of control orders but to narrow them. In short, the Government have concluded that the current architecture of the control order system might lead to a result that the Government did not want, in that a control order could be granted in circumstances that they would regard as not being justified. Therefore they want to close that down and to do so in a way that deems that the closure dates back to the original control order architecture of 2005.
On the face of it, the Government’s justification for this is that it is entirely a matter that will favour the person who might be subject to a control order. There may be an alternative way of looking at this, although the Minister may wish to reassure me that I am wrong. Control orders, by their very nature, walk a delicate tightrope within the limits of acceptability under the European convention on human rights. If in the original drafting in 2005, the scope of the possible application of the power was placed too wide, it could be argued that that might be a ground on which a person made subject to a control order in the future might say that the scope of the entire control order system could not be upheld because it was too widely drawn and that that was an example of it. I do not know. These are recondite legal arguments, but I can see how it might happen. I cannot help but think that that is the Government’s more likely fear, than that they would try to seek a power that they are not comfortable with within the scope of the 2005 orders.

David Heath: What the hon. and learned Gentleman says perfectly illustrates the fact that it is time that we revisited the control order regime to see how it could be improved and how some of its defects, which have come to light through legal judgments and elsewhere, could be addressed. I do not believe that this is the right time to do so and I look forward to this afternoon’s session, although we cannot possibly do the matter justice in the context of the amendment tabled for that purpose this afternoon, and it is entirely probable that we will not wish to enter into a debate on it. Does the hon. and learned Gentleman agree that it is time that we revisited the Prevention of Terrorism Act 2005 and looked at the matter in the round?

Dominic Grieve: I do agree with him. He will recollect that my party has supported renewal of the control orders on a number of occasions, but that we indicated on the last occasion that we hoped that this Bill might provide an opportunity for us to look at the matter again in some detail. I fear that that will not happen, partly because the Government themselves have not come forward with a series of amendments to trigger it and because the necessities of time make it unlikely that we can consider it in proper detail this afternoon.
I am mindful of the hon. Gentleman’s amendments. I saw that he had tabled them, and if he had not, I probably would have tabled some of my own. I doubt that we will have a better opportunity on Report, but this little matter of a flaw in the control order mechanisms that the Government have picked up on classically illustrates why an overview of the matter may be desirable—not in the sense of getting rid of control orders altogether, because we have always accepted that they may be an unpleasant necessity. We have held that opinion for some time, though we have been unhappy about them, as I am sure the Government are.
The basic issue is whether we should press the matter to a vote at this stage. I am slightly swayed by the opinion of my right hon. and learned Friend and I will seek to withdraw the amendment, but I am unhappy about the principle of retrospectivity and would be minded to return to it on Report if the Government cannot come up with a better formula for dealing with it. The Minister might like to note what I have said and, with regard to my anxiety about this being a possible loophole that a defendant could properly exploit to attack the principle of control orders, reassure me that that is not the Government’s main motivation, rather than clearing up an area where the Government think that they might use excessive powers, although of course in practice I am sure that they have no intention of doing so. Subject to that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72 ordered to stand part of the Bill.

Clauses 73 to 76 ordered to stand part of the Bill.

Clause 77

Costs of policing at gas facilities: England and Wales

Dominic Grieve: I beg to move amendment No. 199, in page 55, line 7, after second ‘the’ insert ‘national security of the’.
This is really an issue of clarification. The clause applies where
“provision of extra police services at a gas facility in England or Wales is necessary because of a risk of loss of or disruption to the supply of gas connected with it, and...that the loss or disruption would have a serious impact on the United Kingdom or any part of it.”
The amendment seeks to emphasise the point that this is necessary for the purposes of the prevention of terrorism. I should be grateful if the Minister would respond.

Tony McNulty: I understand the broad thrust of the amendment, and it is a difficult area in the sense that we seek to protect these key facilities and afford in statute an ability for the operators to recover their costs. We have already done this on a voluntary basis; this simply puts it on a statutory basis. Given the importance of these facilities for the economy and overall life of the UK, we want that done all the time, 24/7, on a regular basis. Yes, crucially, that will seek to prevent terrorist incursion to disrupt those facilities, but it would just confuse things if we simply included the reference to the national security of the UK, because we want protection all the time; yes, principally protection from terrorism, but also for the broader interest, economic and otherwise, of the facility.
I understand where the hon. Member for Newark is coming from in terms of trying to strengthen the anti-terrorist dimension of the clause, but the amendment will not achieve that. In fact, it will probably lessen and dilute the import of what we are trying to do to protect these facilities. The point where the national security elements of such key facilities stops, and their broader contribution to economic life begins is, by definition, incredibly blurred. I sympathise with his reasons for the amendment, but I do not think it works. The clause as written achieves exactly what he seeks to achieve, and I would ask that the amendment be withdrawn.

Dominic Grieve: This was a probing amendment, so I am happy to withdraw it. We will come on to a couple of other areas where it would be quite useful if the Minister could tell us a little more about the discussions that have taken place between the Government and those within the industry who will have to bear these particular costs—which could be quite onerous—and whether they are in fact happy and content with the measures provided in the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 45, in page 55, line 17, after ‘State’, insert ‘or a police authority’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 200, in page 55, line 17, leave out ‘in or around’ and insert ‘within a one mile radius of’.
No. 201, in clause 78, page 56, line 2, leave out ‘in or around’ and insert
‘within a one mile radius of’.

David Heath: Before I address the amendment, it might be helpful to seek a definitional clarification, which is: what is meant by “gas”? It is not defined in the Bill. I attempted to table a probing amendment to seek to clarify that. I assume we are talking about hydrocarbons—gas intended for fuel use—but “gas” is a rather broad term, and I am quite surprised that it is not defined in the Bill. Perhaps there is a statutory meaning of “gas” which already provides this; if so, it surprises me.

Edward O'Hara: Order. I have been very generous, but the hon. Gentleman is speaking to amendments that have not been selected.

David Heath: I apologise, Mr. O’Hara. Perhaps I went on at too great a length. It was a point that I would otherwise have raised in the clause stand part debate. I was trying to avoid a further debate at that point.
Amendment No. 45 introduces the words “or a police authority”. This may be a matter on which the Minister can very quickly reassure me. It is clear that when extra police services are provided for the security of gas facilities, they can come from two sources. They can come from the Ministry of Defence police, in which case no problem arises, or they can be provided under section 25(1) of the Police Act 1996, entitled “Provision of special services”, in which case they will of course be drawn from territorial police forces. All I am trying to ensure—[Interruption.]The Ministersays that I am wrong on that fact. If that is the case, I am very happy to take an intervention.

Tony McNulty: I am mindful of your exhortations, Mr. O’Hara, and will wait until I respond to the debate.

David Heath: That is the worst of all worlds: an intervention that did not give me the answer. The point is that if police are provided by a territorial force, it is appropriate that the police authority that has the responsibility for funding that force has the recompense from this levy back to their resources. I know when I was chairman of a police authority, there was very great resentment when the resources for policing national events or events with national security implications had to come from already overstretched police authority budgets. The end was willed by the Government, but not the means to provide.

Tony McNulty: The Bill makes provision for either the MOD police or territorial police to provide that policing. Under current arrangements, in many of these cases, there is a central national pot that funds dedicated security posts. By and large, that money is from the centre, given that these are national provisions. I do take the point about abstraction from territorial forces, but that has not been the case thus far and is unlikely to be in the future.

David Heath: I am grateful for that, which means I can abbreviate my further points. I would like to be satisfied that that is the case. I will give a direct example: the policing of Bristol airport at times of high terrorist activity was a significant drain on the Avon and Somerset constabulary. It meant abstraction from our local constabularies: police officers who were community officers in my area found themselves instead toting machine guns at Bristol airport. It does seem appropriate that, where local police authorities are having to carry the burden of a national security responsibility, they are properly recompensed for it. I hope and think the Minister is assuring me that that is the case. If he can give that assurance, I will be satisfied.

Dominic Grieve: I join in the comments made by the hon. Member for Somerton and Frome. In addition, there are a couple of amendments that we have tabled that are to be considered now. They are really definitional, as to what constitutes “in and around” a facility and whether that should be geographically defined. My question to the Minister is whether what constitutes the provision of extra police services in or around a facility will be a source of dispute if no further geographical definition is given. The amendments propose 1 mile; they are probing amendments and again I come back to the nature of the discussions that have taken place between the Government and the industry itself and the providers, in terms of resolving these matters. Will there be arguments over the interpretation of the text of the statute?

Tony McNulty: I certainly can assure the hon. Member for Somerton and Frome that is not intended for this provision either to come out or be abstracted from territorial forces that just happen to have such a facility in their area. It is above and beyond that.
I will not quote the site but one example now has voluntarily 24 hours a day, seven days a week armed response coverage by the MOD police. Prior to them taking over the role, a small team from the territorial force involved, fully funded from the dedicated security post central pot, did that in its stead. We are trying to replicate that because I do take the point about abstraction.
Without incurring your wrath, Mr. O’Hara, the points about airports are entirely separate and different. The designated airports, that is the ex-BAA airports, do need to come to some arrangement with the local police—Heathrow, Gatwick and so on. The non-designated invariably do not or are always a matter of dispute, rather like Bristol. So the hon. Gentleman will give two cheers at least for the announcement among others yesterday of a transport security Bill, which is designed to implement that aspect of Stephen Boys Smith’s report that tries to restore the balance between that crucial infrastructure—local airports—and the burden on local police, simply because it happens to be in their area. I digress, for which I apologise.
While I am on my feet—because I do not think there will be a need for a clause stand part—if the hon. Gentleman turned the page gently to clause 81(4) he would see that all expressions used in the sections are defined in part 1 of the Gas Act 1986. That covers every aspect of what he referred to earlier in terms of definition, narrowly defined, too, by the reference in the Gas and Electricity Markets Authority, which is the interplay between those, and says what we want.

Edward O'Hara: Order. That is precisely why the amendments were not selected.

Tony McNulty: Thank you, Mr. O’Hara, for that admonition for someone else through me.
I am not inclined to accept the point about geography, not least because in our discussions with Ofgem, the industry and the police, it is seen as an operational matter. These are distinct and very different facilities. In one case, to draw a half-mile radius might be more than sufficient to encompass all the security and policing dimensions but, given their nature, others might be far broader than that.
The broad intention would be—largely informally and voluntarily—to have that drawn up and agreed between the parties concerned. By their nature, some of these sites are very close to coastal areas and rely strongly on the road network and it is for the chief constable or the principals concerned to determine where the security and policing impact in terms terrorism or continued utilisation of those sites should be drawn. On balance, while 1 km or 1 mile might be sufficient in many areas, I do not want to restrict their hands in that context. There can be broad agreement by the parties concerned as to what the necessary curtilage around one of these sensitive sites would be.
This seeks to put in the Bill a statutory provision that is already carried out on some sites on a voluntary basis. Hon. Members will know that these are very important sites and we think that this is the way not to replicate the airport position that imposes an undue burden on the local constabulary simply because of the accidental geographical location of such sensitive sites. I hope that the amendment will be withdrawn.

David Heath: That was an entirely satisfactory response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 ordered to stand part of the Bill.

It being twenty-five minutes past Ten o’clock,The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.